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Action

Proposed Rule.

Summary

We, the U.S. Fish and Wildlife Service (Service), propose to revise the regulations that implement the Endangered Species Act (Act). This action would eliminate the exclusion of U.S. captive-bred live wildlife and sport-hunted trophies of three endangered antelopes—scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama)—from certain prohibited activities, such as take and export, under the Act. This proposed change to the regulations is in response to a court order that found that the rule for these three species violated section 10(c) of the Act. These three antelope species remain listed as endangered under the Act, and a person would need to qualify for an exemption or obtain an authorization under the current statutory and regulatory requirements to conduct any prohibited activities.

We will not accept e-mails or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section at the end of SUPPLEMENTARY INFORMATION for further information about submitting comments).

On September 2, 2005 (70 FR 52319), the Service determined that the scimitar-horned oryx (Oryx dammah), addax (Addax nasomaculatus), and dama gazelle (Gazella dama) were endangered throughout their ranges under the Act (16 U.S.C. 1531et seq.). The numbers of these species of antelopes in the wild have declined drastically in the deserts of North Africa over the past 50 years. The causes of decline are habitat loss (desertification, permanent human settlement, and competition with domestic livestock), regional military activity, and uncontrolled killing. No sightings of the scimitar-horned oryx had been reported since the late 1980s, and the species may now be extinct in the wild. Remnant populations of the addax may still exist in remote desert areas, but probably fewer than 600 occur in the wild. Only small numbers of dama gazelle are estimated to occur in its historical range, with recent estimates of fewer than 700 in the wild. Captive-breeding programs operated by zoos and private ranches have increased the number of these antelopes, while genetically managing their herds and providing founder stock necessary for reintroduction. The Sahelo-Saharan Interest Group (SSIG) of the United Nations Environment Program estimated that there are 4,000-5,000 scimitar-horned oryx, 1,500 addax, and 750 dama gazelle in captivity worldwide, many of which are held in the United States.

Thus, on September 2, 2005 (the same date that we listed the three antelopes as endangered), the Service added a new regulation (70 FR 52310) at 50 CFR 17.21(h) to govern certain activities with U.S. captive-bred animals of these three species. For live antelopes, including embryos and gametes, and sport-hunted trophies of these three species, the regulation authorized certain otherwise prohibited activities that enhance the propagation or survival of the species. These activities include take; export or re-import; delivery, receipt, carrying, transport or shipment in interstate or foreign commerce in the course of a commercial activity; and sale or offer for sale in interstate or foreign commerce.

Captive-breeding programs have played a role in the conservation of the scimitar-horned oryx, addax, and dama gazelle, and we found that activities associated with captive breeding within the United States enhance the propagation or survival of the species by managing the species to ensure genetic integrity and diversity, serving as repositories for surplus animals, and facilitating the movement of specimens between breeding facilities. Some U.S. captive-breeding facilities allow sport hunting of surplus captive-bred animals, which generates revenue to support the operations and may relieve hunting pressure on wild populations.

In the September 2, 2005, rule at 70 FR 52310, we published the final rule that found that the regulatory framework we were establishing at 50 CFR 17.21(h) met the standards for both enhancing the propagation and enhancing the survival of U.S captive-bred scimitar-horned oryx, addax, and dama gazelle as shown by the findings for each of the criteria found at 50 CFR 17.22(a)(2) for endangered species permits. We found that 50 CFR 17.21(h) protects populations in the wild, ensures appropriate management of U.S. captive-bred specimens, and encourages continued captive breeding and management of these species. In addition, we made the required findings under section 10(d) of the Act. We also determined that the rulemaking process that amended 50 CFR 17.21 by adding a new paragraph (h) satisfied the requirements for notification and opportunity for public comment under section 10(c). Therefore, persons who wished to engage in specified otherwise prohibited activities with U.S. captive-bred scimitar-horned oryx, addax, and dama gazelle, when such activities meet the criteria of 50 CFR 17.21(h), could do so without obtaining an individual endangered species permit.

The promulgation of the regulation at 50 CFR 17.21(h) was challenged as violating section 10 of the Act and the National Environmental Policy Act in the United States District Court for the District of Columbia (see Friends of Animals, et al., v . Ken Salazar, Secretary of the Interior and Rebecca Ann Cary, et al., v. Rowan Gould, Acting Director, Fish and Wildlife Service, et al., 626 F. supp. 2d 102 (D.D.C. 2009)). The Court found that the rule for the three antelope species violated section 10(c) of the Act. On June 22, 2009, the Court remanded the rule to the Service for action consistent with its opinion.

To comply with the Court's order, the Service proposes to remove the regulation at 50 CFR 17.21(h) and eliminate the exemption for U.S. captive-bred scimitar-horned oryx, addax, and dama gazelle from certain prohibitions under the Act. Any person who wishes to conduct an otherwise prohibited activity with U.S. captive-bred scimitar-horned oryx, addax, or dama gazelle would need to qualify for an exemption or obtain authorization for such activity under the current statutes or regulations.

Regulatory Planning and Review—Executive Order 12866: The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria.

(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of government.

(b) Whether the rule will create inconsistencies with other Federal agencies' actions.

(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

(d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act: Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations,and small government jurisdictions) (5 U.S.C. 601et seq.). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.

The U.S. Small Business Administration (SBA) defines a small business as one with annual revenue or employment that meets or is below an established size standard. We expect that the majority of the entities involved in taking, exporting, re-importing, and selling in interstate or foreign commerce of these three endangered antelopes would be considered small as defined by the SBA.

This proposed rule would require individuals and captive-breeding operations of the three endangered antelopes to apply for authorization and pay an application fee of $100-$200 and apply for a permit when conducting certain otherwise prohibited activities. The regulatory change is not major in scope and would create only a modest financial or paperwork burden on the affected members of the general public.

We, therefore, certify that this rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601et seq.). A Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

Small Business Regulatory Enforcement Fairness Act: This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

a. Would not have an annual effect on the economy of $100 million or more. This rule proposes to remove the regulation that excludes U.S. captive-bred scimitar-horned oryx, addax, and dama gazelle from certain prohibitions of the Act. If finalized, individuals and captive-breeding operations would need to qualify for an exemption or obtain endangered species permits or other authorization to engage in certain otherwise prohibited activities. This proposed rule would not have a negative effect on this part of the economy. It will affect all businesses, whether large or small, the same. There is not a disproportionate share of benefits for small or large businesses.

b. Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, tribal, or local government agencies; or geographic regions. This rule would result in a small increase in the number of applications for permits or other authorizations to conduct otherwise prohibited activities with these three endangered antelope species.

c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

a. This proposed rule would not significantly or uniquely affect small governments. A Small Government Agency Plan is not required.

b. This proposed rule would not produce a Federal requirement of $100 million or greater in any year and is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

Takings: Under Executive Order 12630, this rule would not have significant takings implications. A takings implication assessment is not required. This proposed rule is not considered to have takings implications because it allows individuals to obtain authorization for otherwise prohibited activities with these three endangered antelopes when issuance criteria are met.

Federalism: This proposed revision to part 17 does not contain significant Federalism implications. A Federalism Assessment under Executive Order 13132 is not required.

Civil Justice Reform: Under Executive Order 12988, the Office of the Solicitor has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of subsections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act: The Office of Management and Budget approved the information collection in part 17 and assigned OMB Control Numbers 1018-0093 and 1018-0094. This proposed rule does not contain any new information collections or recordkeeping requirements for which OMB approval is required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.). We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA): The Service has determined that this proposed rule is a regulatory change that is administrative and legal in nature. As such, the proposed rule is categorically excluded from further NEPA review as provided by 43 CFR 46.210(i), of the Department of the Interior Implementation of the National Environmental Policy Act (73 FR 6129269 (October 15, 2008)). No further documentation will be made.

Government-to-Government Relationship with Tribes: Under the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have evaluated possible effects on federally recognized Indian Tribes and have determined that there are no effects.

Energy Supply, Distribution or Use: On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. This proposed rule would not significantly affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.

Clarity of this Regulation: We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

You may submit your comments and materials concerning this rule by one of the methods listed in the ADDRESSES section. We will not accept comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.

We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your written comments, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service; Division of Management Authority; 4401 N. Fairfax Drive, Suite 212; Arlington, VA 22203; telephone, (703) 358-2093.